Civil Rights
Jun. 16, 2005
Court Moves to Weed Out Race Issue in Jury Selection
Forum Column - By Erwin Chemerinsky - In two important decisions Monday, the U.S. Supreme Court reaffirmed that peremptory challenges cannot be exercised on the basis of race and made it easier for criminal defendants to show that prosecutors violated this basic rule.
Erwin Chemerinsky
Dean and Jesse H. Choper Distinguished Professor of Law, UC Berkeley School of Law
Erwin's most recent book is "Worse Than Nothing: The Dangerous Fallacy of Originalism." He is also the author of "Closing the Courthouse," (Yale University Press 2017).
Forum Column
By Erwin Chemerinsky
In two important decisions Monday, the U.S. Supreme Court reaffirmed that peremptory challenges cannot be exercised on the basis of race and made it easier for criminal defendants to show that prosecutors violated this basic rule. In Miller-El v. Dretke, 2005 DJDAR 6877, and Johnson v. California, 2005 DJDAR 6903, the court offered its most important clarification in almost 20 years as to how it is to be determined whether race has been impermissibly used in excluding prospective jurors.
In Batson v. Kentucky, 476 U.S. 79 (1986), the Supreme Court held that prosecutors cannot use race as the basis for peremptory challenges. In the years following Batson, the court repeatedly extended it to other contexts. In Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991), the Supreme Court held that Batson applies in private civil litigation. A year later, in Georgia v. McCollum, 505 U.S. 42 (1992), the court concluded that criminal defendants cannot exercise peremptory challenges based on race. And in J.E.B. v. Alabama ex rel T.B., 511 U.S. 127 (1994), the court extended Batson to preclude the exercise of peremptory challenges based on gender.
In Batson, the court prescribed a three-part inquiry for courts to use in determining whether race or gender has been impermissibly used in the exercise of peremptory challenges. First, a party objecting to the use of peremptory challenges must make out a prima facie case that race or gender was the basis for peremptory challenges.
For example, in a criminal case, a defendant objecting to the prosecutor's exclusion of prospective jurors has the burden to make out a prima facie case that race was the basis for excluding the prospective jurors. If such a prima facie case is made, then second, the burden shifts to the other side to demonstrate that it had permissible grounds for excluding the prospective jurors. Third, the trial court must then determine whether it was proven that race was improperly used in excusing jurors.
Although Batson is almost 20 years old, the Supreme Court had done little to clarify what is sufficient to prove a prima facie case or to prove that race was the basis for peremptory challenges. Monday's decisions offer a much-needed clarification, and they send a clear and necessary message to trial courts that they have the duty to make sure that prosecutors do not use peremptory challenges based on race.
In Johnson v. California, the court focused directly on the burden on the criminal defendant in making out a prima facie case that race has been impermissibly used by a prosecutor. Johnson, a black man, was convicted in a California Superior Court of assaulting and murdering a white child. During jury selection, a number of prospective jurors were removed for cause until 43 eligible jurors remained, three of whom were black. The prosecutor used three of his 12 peremptory challenges to remove the black prospective jurors, resulting in an all-white jury.
Defense counsel objected to those strikes on the ground that they were unconstitutionally based on race. The trial judge did not ask the prosecutor to explain his strikes, but instead simply found that petitioner had failed to establish a prima facie case of purposeful discrimination. The trial court interpreted People v. Wheeler, 22 Cal.3d 258 (1978), as requiring a showing of a strong likelihood that the exercise of peremptory challenges was based on racial bias. The trial judge explained that, although the case was close, his review of the record convinced him that the prosecutor's strikes could be justified by race-neutral reasons.
Although the California Court of Appeal reversed, the California Supreme Court reaffirmed the conviction and concluded that the defendant had not made out a prima facie case that race had been impermissibly used by the prosecutor in the exercise of peremptory challenges.
The California Supreme Court said that under Batson and Wheeler, the burden is on a criminal defendant objecting to the use of peremptory challenges to present sufficiently strong evidence to establish that the challenges, if not explained, were more likely than not based on race. Applying that standard, the California Supreme Court acknowledged that the exclusion of all three black prospective jurors looked suspicious, but it deferred to the trial judge's ruling.
In an 8-1 decision, with Justice John Paul Stevens writing for the majority and only Justice Clarence Thomas dissenting, the court rejected the California standard as unduly restrictive. The court concluded it's not appropriate to require a showing that it was more likely than not that race was used as the basis for peremptory challenges in order to make out a prima facie case of a Batson violation.
Stevens explained that it is not appropriate to make the first step so onerous that a defendant would have to persuade the judge that the challenge was more likely than not the product of purposeful discrimination. Instead, a defendant satisfies Batson's first-step requirements by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred.
At Johnson's trial, the prosecutor struck all three black prospective jurors in a murder prosecution of a black defendant. The court concluded that this was sufficient to make out a prima facie case under Batson and to shift the burden to the prosecutor to show race neutral explanations for its exercise of peremptory challenges.
Miller-El also was a capital case involving a black defendant. The prosecutor used peremptory strikes to exclude 10 of the 11 black people during jury selection. The defendant, Miller-El, objected and argued that the strikes were based on race and could not be presumed legitimate because the district attorney's office had a history of excluding black people from criminal juries.
After a long and complicated journal up and down the state and federal courts, the 5th U.S. Circuit Court of Appeals concluded that there was not sufficient proof that race had been impermissibly used in the exercise of peremptory challenges. The Supreme Court, in a 6-3 decision with Justice David Souter writing for the court, reversed and held that the defendant had proven a Batson violation.
Souter explained that the prosecutors used peremptory strikes to exclude 91 percent of the eligible black venire panelists, a disparity unlikely to have been produced by happenstance. More importantly, the court said that impermissible motive was evident from its comparison of black prospective jurors who were struck with white ones who were not. Souter explained that if a prosecutor's proffered reason for striking a black panelist applies just as well to a white panelist allowed to serve, that is evidence tending to prove purposeful discrimination.
The court pointed to the prosecutors' practices to show that there had been impermissible use of race. For example, the Dallas County district attorney's office had, for decades, followed a specific policy of systematically excluding black people from juries. The Miller-El prosecutors' notes of the race of each panel member show that they took direction from a jury selection manual that included racial stereotypes. Additionally, the court noted that different questions were asked of black prospective jurors than of white ones. Thus, the court concluded that it was unreasonable for the 5th Circuit to conclude that peremptory challenges had not been exercised based on race.
Over the years since Batson, many lower courts, including in California, have made it increasingly difficult for defendants to show that race was impermissibly used in the exercise of peremptory challenges. For example, the California standard under Wheeler, that a defense attorney had to show it more likely than not that race was used in exercising peremptory challenges just to make out a prima facie case, kept many criminal defendants from ever getting past the first step in a Batson challenge.
Likewise, many courts, such as the 5th Circuit, had gone out of their way to imagine non-race-based reasons for peremptory challenges in order to avoid finding Batson violations.
The Monday decisions are crucial in trying to reverse this trend. Trial courts need to be much more permissive in finding a prima facie case when there is a Batson challenge. When all of the evidence points to race being the basis for peremptory challenges, as in Miller-El, the court should find a Batson violation and not invent race-neutral grounds to excuse the prosecutor's actions.
The decisions in Johnson and Miller-El reflect the importance of the interests at stake. Prospective jurors have the right to be free from race and gender bias in the exercise of peremptory challenges. Even more importantly, criminal defendants have a Sixth Amendment right to juries that are selected without racial bias.
Two decisions cannot, of course, eradicate race from the jury selection process. Nor can two decisions answer the myriad unanswered questions concerning how Batson challenges should be handled. But Monday's rulings are important victories for criminal defendants and for the entire criminal justice system.
Erwin Chemerinsky is Alston & Bird professor of law at Duke Law School.
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